Iraq, detainee abuse, and the danger of humanitarian double standards

The War on Terror and the Laws of War: A Military Perspective

By Geoffrey S. Corn

Eleven years ago this month the US-led military coalition crossed the ‘line of departure’ from Kuwait into Iraq. The full spectrum dominance of these forces produced a rapid victory over the Iraqi armed forces. Unfortunately, winning the peace turned out to be far more complex than winning the war (although for the Americans who bore the burden of securing that initial victory there was certainly nothing ‘easy’ about it). Not long after defeating organized enemy resistance, coalition forces began the long process of occupation, counter-insurgency, and return to full Iraqi sovereignty. Each phase of this overall effort seemed to produce never-ending operational and tactical challenges, all of which were mirrored by associated legal challenges.

The Iraq campaign was not, however, conducted in a strategic vacuum. Instead, it was part of a broader US effort to disrupt and disable al Qaeda, the transnational terrorist organization responsible for the devastating September 11th attacks. But while perhaps strategically linked to this broader effort, Iraq was – at least for the most part – an operationally distinct effort, at least at the initial stage prior to the rise of al Qaeda Iraq. What is more significant is that unlike the so-called ‘war on terror’, Iraq was much more of a ‘conventional’ fight, generating legal issues that had been contemplated and addressed in international humanitarian law. Coalition forces followed well-established rules related to conduct of hostilities, belligerent occupation, and detainee capture, status, and treatment.

Why Abu Ghraib happened was and will continue to be debated for years to come. While the abuse of al Qaeda detainees captured and held outside Iraq was without question responsive to legal opinions and resulting policy decisions emanating from the highest levels of the US government, these policies never explicitly extended to Iraq. It does seem clear, however, is that the prohibitory effect of the law of war, and the Geneva Conventions more specifically, had been diluted for the US soldiers entrusted with the responsibility to manage and control this detention facility. This dilution ultimately contributed to gross abuses of detainees within the control of the United States and at the complete mercy of their captors. Abuse of power over such individuals should, and must always, engender outrage and condemnation, not merely because of the blatant violation of fundamental humanitarian protections, but because such misconduct is a derogation of the most basic notions of soldier professionalism.

There are important lessons to learn from this incident. These range from the strategic debacles that often flow from violations of the law of armed conflict, to the true meaning of ‘responsible command’ – training, supervising, and correcting subordinates to ensure compliance with all commands, including respecting legal obligations. However, there is another lesson to be drawn from this unfortunate episode: the danger of dehumanization.

Secretary of Defense Donald H. Rumsfeld takes a tour of the Abu Ghraib Detention Center in Abu Ghraib, Iraq, on May 13, 2004. Rumsfeld and Chairman of the Joint Chiefs of Staff Gen. Richard B. Myers are in Iraq to visit the troops in Baghdad and Abu Ghraib. DoD photo by Tech. Sgt. Jerry Morrison Jr., U.S. Air Force. Public domain via defense.gov.

Every US soldier assigned to the Abu Ghraib prison, like every other US service-member who entered the Iraq theater of operations, was instructed to comply with the Geneva Conventions. It was part of their pre-deployment training; it was incorporated into Rules of Engagement cards; it was incorporated into command directives and orders. However, during this same time the United States was prosecuting another conflict against al Qaeda. Unlike the rules applicable to detainees at Abu Ghraib who were subject to the protections of the Fourth Geneva Convention, the conflict against al Qaeda involved no analogous emphasis on Geneva compliance. Instead, leaders at the highest level of US civilian and military organizations repeatedly emphasized that this enemy was composed of, ‘unlawful’ combatants — individuals who had no legitimate claim on the humanitarian protections of the laws and customs of war. Unlike a ‘legitimate’ enemy, this enemy could be subjected to detention and treatment conditions inconsistent with the most basic principle of humane treatment. In short, US forces were applying a genuine double-standard: detainees — whether military or civilian — considered ‘legitimate’ received the benefit of the law; those considered ‘illegitimate’ did not.

Encouraging soldiers to view certain enemies as unworthy of the most basic principles of humanity is a recipe for disaster. War involves an inherent need to dehumanize your opponent, an unfortunate necessity to enable soldiers to engage in the even more unfortunate necessity of killing on demand. Most moral beings are naturally averse to killing, and when doing so is not triggered by the survival instinct in response to an imminent threat, that aversion must be overcome. Dehumanization of the enemy serves this purpose.

But these same warriors must be capable of flicking the proverbial humanity switch, restoring the enemy to a status of human being at the moment the enemy is subdued. This is an even more complex task. Asking a soldier to show human mercy to an enemy, who, only moments prior was just trying to kill him, or perhaps just killed his best friend, is an immense leadership challenge. That challenge is facilitated by bright-line rules of war, rules that aid the warrior in navigating this moral abyss.

Diluting the clarity of these bright line rules is, therefore, terribly dangerous. These rules dictate to soldiers and their leaders that engaging in hostilities is, in the ultimate analysis, not ‘personal’, but instead an obligation imposed by the State or the non-state group. Thus, in a very real sense, the soldier is not acting in an individual capacity, but as the agent of the military organization ordering the soldier to participate in hostilities. In this capacity, the soldier is restrained from allowing the natural human instincts of vengeance and retribution to undermine the objectives of the organization writ large. The principle of humanity, when extended to captured opponents, implements this core tenet of organized hostilities; the struggle cannot be treated as personal.

There is a lesson that transcends the reminder that detainee abuse incidents produce profound strategic and tactical negative consequences. That lesson is that preservation and reinforcement of the bright line rules of humanity in warfare demand that distinctions between ‘categories’ of captured opponents must not be intended or perceived as a justification for treatment inconsistent with this core principle. When this occurs, the dilution may and often will very quickly infect the treatment of individuals granted a more protective status. This is precisely what happened when the United States authorized abusive treatment of unlawful combatants. Although none of the detainees in Iraq fell into that category, the broader message signaled by senior US (mainly civilian) leaders was clear: some captives are unworthy of the full protection of the law of armed conflict. Did this contribute to the inhumane treatment inflicted upon Iraqi detainees? It seems almost self-evident that the answer is yes. What beyond any doubt is that this could not have helped reinforce commitment to the legal obligations that so clearly applied to these victims.

Telford Taylor wrote several decades ago that war does not provide a license to kill; it imposes a duty to kill. But that duty is imposed by the State, and it is subordination to the interests of the State that defines warrior professionalism and permeates the restrictions imposed on warriors by the law of armed conflict. These restrictions serve both military and humanitarian interests, by protecting individuals from gratuitous violence and by facilitating mission accomplishment through the mitigation of resentment and disdain among opponents and potentially hostile civilian populations. But it is easy to understand why these restrictions may frequently be perceived as counter-intuitive for individuals engaged in mortal combat who must, in order to overcome the human aversion to killing, dehumanize their opponents. The States and military leaders who demand this conduct from men and women must, therefore, be vigilant in reinforcing these bright lines and avoid the temptation to extend the dehumanization that is an unfortunate necessity of pre-submission encounters with the enemy to their post-submission treatment. If this is a lesson learned from the Abu Ghraib debacle, then some good will ultimately be derived from that sad incident.

Geoffrey S. Corn is Presidential Research Professor of Law, South Texas College of Law; Lieutenant Colonel (Retired), U.S. Army Judge Advocate General’s Corps. Prior to joining the faculty at South Texas, Professor Corn served in a variety of military assignments, including as the Army’s senior law of war advisor, supervisory defense counsel for the Western United States, Chief of International Law for U.S. Army Europe, and as a tactical intelligence officer in Panama. He is the co-author of The War on Terror and the Laws of War: A Military Perspective with Michael Lewis, Eric Jensen, Victor Hansen, Richard Jackson, and James Schoettler.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.

[…] The following article entitled “Iraq, detainee abuse, and the danger of humanitarian double standards” authored by Geoffrey S. Corn was first published on OUPblog, Oxford University Press’s Academic Insights for the Thinking World and is reproduced here with the kind permission of OUP. The original article is available here http://blog.oup.com/2014/03/iraq-detainee-abuse-humanitarian-double-standards-pil/. […]